Former Yorker embroiled in same-sex custody battle

Kimberly Wherley is fighting for partial custody of the two children her former domestic partner gave birth to during their relationship. (SUBMITTED)

A York County family has stakes in a child custody battle that's catching statewide attention for highlighting the legal uncertainties of gay non-biological parents.

Wherley v. Cavitt plaintiff Kimberly Wherley, 32, is a 2000 West York graduate who met former partner Amanda Cavitt in 2005, when they both worked at a martial arts school near Philadelphia. They married at Wherley's parents' West York home in 2007 and immediately started thinking about having children, Wherley said.

While the local ceremony held no legal power, the women moved from York in 2008 and were legally recognized as domestic partners in California in 2009, Wherley said.

They planned a family through an Internet cryobank, or sperm bank, and it was decided Cavitt would carry the baby. They selected the male donor based on traits similar to Wherley's, so the babies would have her blue eyes, brown hair and athletic body type, she said.

Cavitt was inseminated and became pregnant. Wherley would sing a Toni Braxton song to the growing belly because, for some reason, that song always made the baby kick.

Five years ago, the little girl was born in California. Cavitt was listed as the mother and Wherley was listed as "parent/father," on the birth certificate, and the child carried the surname Wherley, Wherley said.

The couple moved back to Chester County, Pa., and decided to have a second child, selected from the same donor so the two would be biological siblings. A little boy was born about 16 months ago, around the time the Wherley/Cavitt relationship started to deteriorate. Under Pennsylvania law, Wherley was not listed on the birth certificate.

Splitting: Wherley moved out of the family's home in February 2013, when the boy was six weeks old, because she fell in love with one of her co-workers, she said.

She relocated nearby, assuming she and Cavitt would be able to strike a 50/50 agreement on custody. But Wherley knew she was "at-risk to begin with, with Pennsylvania's laws."

Under California's domestic partnership, "I would've been judged as a parent of both children," she said.

By that spring it was clear there would be no out-of-court agreement. Wherley filed for custody in Common Pleas court under a legal mechanism called "in loco parentis," under which a person who isn't a biological or adoptive parent can be granted custody if the person meets certain criteria, such as having acted in a parental capacity for three years, according to court documents.

Right after the breakup, Wherley had been given some temporary custody rights, pending the results of the Common Pleas case. She was ordered to pay $1,300 a month in child support.

But Chester County Common Pleas Judge James P. MacEltree II found Wherley has no right to any custody with the baby boy, and her request for 50 percent custody of the 5-year-old girl was denied. She's allowed to see the girl two days every five weeks from 9 a.m. to 4 p.m. on dates selected by Cavitt, according to the April 15 order.

Wherley said the order was devastating; she realized she "might have to fight harder" for any rights with the baby boy, "But I thought (the girl) should be no doubt."

"I'm on her birth certificate," Wherley said. "She calls me 'Mama' and I call her my baby girl. We're very close. I'm the love, hugs, cookies, ice-cream mom. I love that kid and I miss her to death."

In his opinion, MacEltree cited an earlier same-sex suit in the state Supreme Court, writing, "Where the custody dispute is between biological parent and a third party, the burden of proof is not evenly balanced and ... the evidentiary scale is tipped hard to the biological parent's side."

Wherley said she thinks she's being judged harshly because she left the relationship when the baby boy was so young.

"If a husband would leave his wife for somebody with a baby, he might be judged about it, but they wouldn't take away all of the rights that he has."

Wherley has started a fund on www.gofundme.com to raise $10,000 to file an appeal and pay other legal fees. She has until May 15 to raise the money and, despite the attention aimed at the case, had raised less than $400 as of Tuesday afternoon.

The attention: The case is gaining attention from gay rights advocates, who say Wherley's plight shows the need for more clarity in Pennsylvania.

The gay advocacy group Equality Pennsylvania hasn't taken a position on Wherley's case, but spokeswoman Levana Layendecker said it's one of many same-sex custody debates that point to confusion.

"I've seen this case on the Internet, and a lot of people are talking about it because it's an example of how an unclear legal situation can create a lot of pain in people's lives," she said. "You're really at the whims of an individual judge and whatever their personal preference might be. We will have legal ambiguity and subjective judgments until every single person is allowed to marry the person they love and the state recognizes those marriages."

Cavitt's attorney, Donald Kohler Jr. of West Chester, said he would not advise his client to speak to the media while there's an active period of appeal on the case.